The Lawyer Who Hated Cops

I learned early in my police career that when an arrest has been made and a case gets presented in court, it becomes as much a matter of theater as it is of the facts and the law. When putting a case before a jury, presentation and persuasion are every bit as important as testimony and evidence—perhaps more so. And just as a part in a play might be performed by different actors, with each offering his own interpretation and arousing different reactions in the audience, so, too, can a court case be presented differently by attorneys. An attorney may have all the evidence weighing in his favor, but if he can’t present it coherently to the jury—if he can’t play to the back row, as it were—he will probably lose. Over the last quarter-century, few lawyers have played to juries as well as Gerry Spence, the Laurence Olivier of the American courtroom.

As a police officer, I concede this point grudgingly. Many of Spence’s courtroom victories have come in civil cases against law enforcement. Yet he is a master of his craft, as his 18th book, Police State: How America’s Cops Get Away with Murder, makes clear.

I was prepared to hate a book with such a title, of course, and I found several passages objectionable for their gratuitous swipes at police officers and federal agents, who, in Spence’s eyes, act on behalf of the capitalized “Power” he refers to throughout the book. “Daily,” he writes, “across the land we’re deluged with shocking stories of the murder and maiming of our citizens by the police. Many of us no longer feel safe in our own homes, much less the public streets.” Spence here sounds like one of the more coherent members (if there are any such) of the Black Lives Matter movement.

Continuing with the anti-police agitprop, Spence invokes the deaths of Michael Brown in Ferguson, Eric Garner in New York City, and Tamir Rice in Cleveland. But he omits the fact that in all three of these cases, the officers were found to have acted within the law. Spence surely knows that the Brown incident was one of the most thoroughly scrutinized police shootings ever, with the involved officer cleared of wrongdoing in state and federal investigations. Citing Brown in this context taints the book with dishonesty and calls into question some of Spence’s other sweeping anti-police assertions.

Spence accuses police and prosecutors of demonizing criminal defendants through their selective release of damning information to the media. But he pretends that he and his fellow defense attorneys don’t engage in the same practices when it suits them. Indeed, PoliceState is just such an effort to shape public opinion—which might pay dividends in the jury box.

Similarly, Spence decries the delaying tactics employed in civil cases by lawyers representing insurance companies. “Delay wears down even the hardiest people with the best resources,” he writes. “For the poor, delay is often impossible to weather.” Left unsaid here is that defense attorneys also throw sand in the gears of justice when delay serves their interests. Witnesses’ memories fade over time, and in some cases, like those involving street gangs, witnesses grow reluctant to testify if things don’t move swiftly to trial. Criminal cases often unravel when defense attorneys work the system and drag out proceedings. Yet Spence would have his readers believe that only lawyers representing “Power” resort to such tactics.

Further diminishing Spence’s argument is his reliance on an absurd comparison between America today and Nazi Germany. In discussing the Department of Homeland Security’s distribution of $35 billion to police departments for the purchase of “weapons of war,” Spence writes, “The militarization of America’s police, granting them indomitable power over the people, brings on visions of a police state. We remember the German people who actively or passively supported the rise of the Third Reich. If we listen, do we hear the Führer’s ghost laughing?”

PoliceState is leavened throughout with many such over-the-top characterizations, undermining Spence’s otherwise legitimate complaints about the justice system. Spence served as a prosecutor in his home state of Wyoming for eight years before switching to defense work, so he must know that cops are not as evil and scheming as he presents them here. Still, in the eight cases he details here, he presents some examples of outrageous law-enforcement conduct, beginning with the federal agents involved in the Randy Weaver incident at Ruby Ridge, Idaho, in 1992. Spence successfully defended Weaver after his arrest.

The siege at Weaver’s mountain cabin followed a gun battle in which an FBI agent and Weaver’s wife and son were killed. There can be no disputing that the U.S. Marshals Service and the FBI badly mishandled the incident. But there can also be no denying that Randy Weaver himself could have—and should have—surrendered when he was asked to. Had he done so, his wife and son wouldn’t have died, nor would an FBI agent. And Weaver still might have engaged Spence to defend him against the charges, which were flimsy at best.

I found Spence’s description of some judges spot-on. Anyone involved in the justice system knows that judges are essentially lawyers in black robes, and that they are not necessarily blessed with more wisdom than their unrobed peers. “[M]ore than a few judges,” Spence writes, “think that when they are anointed and ascend to that seat on high, some unidentified power causes their humanness to disappear and replaces it with a brand of lofty judicial insight that one can experience only if one’s posterior is affixed to the judge’s chair. Once in an empty courtroom I slipped up to the judge’s chair and sat down, firmly, and waited and waited. I never felt a bit smarter.”

Courthouse habitués refer to some lawyers as “true believers.” These are the defense attorneys who have been steeped in “social justice” teaching and who believe that all defendants, regardless of their misdeeds, are innocent victims of The System. For all his talk about Power and Nazis, and for all his anti-police hyperbole, Gerry Spence isn’t as much of a true believer as he would have you believe. His writing usually carries a sly wink, as though he wants readers to believe things he doesn’t quite embrace himself. He would deny it, of course, and probably with the same wink. In the end, it doesn’t matter. Whether in court or in the theater, it’s not important that the actor believe his lines—only that the audience does.